District Plan Hauraki Gulf Islands Section - Proposed 2006

(Notified version 2006)

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Report on submissions to the Auckland City District Plan: Hauraki Gulf Islands Section - Proposed 2006

1.0 Introduction

This report considers late submissions and late further submissions ('submissions') that were received by the council to the Auckland City District Plan: Hauraki Gulf Islands Section - Proposed 2006 ('the Plan'). The Plan was publicly notified on 18 September 2006. The closing date for lodging submissions was 11 December 2006. The submissions were publicly notified for further submission on 29 April 2007. The closing date for lodging further submissions was 28 May 2007. This report considers whether the council should waive the failure to comply with the time limits for submissions received after the closing dates.

This report has been prepared under section 42A of the Resource Management Act 1991 ('the RMA'), to assist the hearings panel to decide whether it should waive the failure to comply with the time limits as provided for under sections 37 and 37A of the RMA. This report includes recommendations from the planner who prepared this report. The recommendations identify which late submissions should be allowed. The recommendations contained in this report are not decisions of the hearings panel. The panel will make it decision at the start of the hearing process. 

Where the panel does decide to waive the failure to comply with the time limit and allow submissions, the content of those submissions (in particular, the decisions requested) will be considered in subsequent hearing reports.

2.0 Statutory framework

This section of the report sets out the statutory framework within which the council must consider whether to allow late submissions. This framework is set out in sections 37 and 37A of the RMA. Section 37 deals with the power of waiver and extension of time limits. Section 37(1)(a) states as follows:

1. "A consent authority or local authority may, in any particular case, -
   1. extend a time period specified in this Act or in regulations, whether or not the time period has expired; or
   2. waive a failure to comply with a requirement under this Act, regulations, or a plan for the time or method of service of documents."

Section 37A sets out the requirements for waivers and extensions as follows:

1. "A consent authority or local authority must not extend a time limit or waive compliance with a time limit, a method of service, or the service of a document in accordance with section 37 unless it has taken into account -
   1. the interests of any person who, in its opinion, may be directly affected by the extension or waiver; and
   2. the interests of the community in achieving adequate assessment of the effects of a proposal, policy statement, or plan; and
   3. its duty under section 21 to avoid unreasonable delay.
2. A time period may be extended under section 37 for -
   1. a time not exceeding twice the maximum time period specified in this Act; or
   2. a time exceeding twice the maximum time period specified in this Act if the applicant or requiring authority requests or agrees.
3. A consent authority or a local authority must ensure that every person who, in its opinion, is directly affected by the extension of a time limit or the waiver of compliance with a time limit, a method of service, or the service of a document is notified of the extension."

It is noted that there is no maximum time period specified in the RMA for submissions and therefore section 37A(2) does not apply. Rather the Act specifies that the closing date for submissions on a proposed plan shall be at least 40 working days after public notification.

3.0 Consideration of late submissions

3.1 Late prime submissions received by 28 April 2007

All the late submissions received up to 28 April were included in the summary of submissions notified for further submissions on 29 April 2007. Interested parties had the opportunity to view these submissions during the further submission period and were able to lodge further submissions in support or opposition. Taking into account the matters set out in section 37A(1) of the RMA, it is recommended that the panel allow these submissions so that the issues raised can be considered in subsequent hearings.  

It is noted that in December 2006, council's general manager: city development, publicly indicated in a media release that he would strongly recommend to the hearing panel that it accept late submissions received up to 8 January 2007. This undertaking was given in response to requests for a formal extension of the submission period. 

Planner's recommendations about late prime submissions received by  28 April 2007 (inclusive)

That the failure to comply with the time limit for lodging prime submissions be waived for the late prime submissions received by 28 April 2007 under sections 37 and 37A of the RMA.

3.2 Late prime submissions received after 28 April 2007

Submissions dealt with in this section: 3859, 3860, 3861, 3862

Submissions 3859, 3860, 3861 and 3862 were not included in the summary of submissions. Nor were the submissions available for public viewing during the submission period.

3.2.1 Submission 3859

Submission 3859 was received on 7 May 2007, partway through the further submission period. The submission, from the Lara Limited and Andrew Family Trust ('the Trust'), relates to the proposed designation (map ref 9-24) by Telecom of a site at 37-39 Albert Crescent as Waiheke radio station. The Trust owns 43 and 45 Albert Crescent. 

Lois Andrew ¹ contacted council staff in early April with concerns about the proposed increase in the height of the transmission mast at Waiheke radio station and seeking to lodge a submission to the Plan. She was provided with a submission form and advised in writing by emails on 3 ^rd and 4 ^th April that she could lodge a late submission but that the discretion to accept late submissions rests with the hearing panel. Ms Andrew was also advised that the submission should be lodged as soon as possible, preferably that very week, as the summary of submissions was being '. Ms Andrew lodged the submission on 7 May 2007, advising that she had been incapacitated and hence unable to do so earlier. Council staff advised Ms Andrew by email that as the submission had been omitted from the further submissions process it was less likely that the submission would be accepted by the panel. Staff suggested to Ms Andrew that to protect her interests she also lodge a further submission in support of submission 2640 (from the owners of 41 Albert Crescent) which raised similar issues about the Waiheke radio station. Ms Andrew did not do this. Neither were any other further submissions received with respect to submission 2640.

Submission 3859 raises some concerns about the notification process adopted for the Waiheke radio station. The radio station was included in the Plan as a new notice of requirement and the panel can be satisfied that the notification process met and even exceeded RMA requirements.

It is obviously in the interests of the submitter to allow this submission. It is also in the interests of the community as the matters raised in this submission will assist in achieving adequate assessment of the effects of the Waiheke radio station, in particular the additional height proposed. Given that the height issue was also raised in submission 2640, there was opportunity for other parties to lodge further submissions relating to it, but none have done so.

It is noted that the council emailed Telecom a copy of this late submission on 8 May 2007. Telecom therefore had the opportunity to lodge a further submission relating to it, but chose not to. As requiring authority, Telecom already has the right to appear at the hearing and respond to submissions in any case. Telecom's planning consultant has advised the council that his client does not oppose the council waiving the time period for submission 3859.

Taking into account the matters set out in section 37A(1) of the RMA, it is recommended that the panel allow this submission so that the issues raised can be considered in subsequent hearings.

3.2.2 Submissions 3860, 3861 and 3862

Submissions 3860 and 3861 were received on 28 May 2007, and submission 3862 was received on 25 May 2007. The period for lodging further submissions closed on 28 May 2007. No reasons have been given by these submitters as to why the submissions were late.

Submission 3860 is from Blackstone Ltd, and the submitter's planning consultant has indicated that this is intended to be a submission, not a further submission. Submission 3861 is from Stefan Buchwald. Submission 3862 is from Judith Yeoman and others ². All these submissions are about similar matters. Submission 3860 is about the zoning of Neil Avenue and Hunterville Road on Waiheke. It asks that Neil Avenue be formed. Submission 3861 and 3862 are about the zoning of Neil Avenue only.

Blackstone Ltd, and Yeoman and others have also lodged further submissions in support of a number of submissions (submission 1314/1 and others) which all seek the following:

"Inclusion of a commitment by the council within the Plan to work with landowners and residents to resolve long-standing problems of access to private properties through use of unformed roads or other appropriate measures."

It is obviously in the interests of the submitters to allow these submissions. However as these submissions were not included in the summary of submissions, the council cannot be satisfied that it has available the full range of community views to ensure adequate assessment of the effects of classifying Neil Avenue and Hunterville Road as recreation 1 (local parks and esplanade reserve). There may be people who would have opposed these submissions if they had been given the opportunity to do so. For this reason, and taking into account the matters set out in section 37A(1) of the RMA, it is recommended that the failure to comply with the time limit not be waived for submissions 3860, 3861 and 3862.

Planner's recommendations about late prime submissions received after 28 April 2007

That the failure to comply with the time limit for lodging prime submission be waived for submission 3859 under sections 37 and 37A of the RMA. That the failure to comply with the time limit for lodging prime submission not be waived for submissions 3860, 3861 and 3862 under sections 37 and 37A of the RMA.

3.3 Late further submissions received by 13 July 2007

Taking into account the matters set out in section 37A(1), it is recommended that the panel allow these late further submissions so that the indications of support or opposition contained within them can be considered in subsequent hearings.

Planner's recommendations about late further submissions received by 13 July 2007 (inclusive)

That the failure to comply with the time limit for lodging further submissions be waived for the late further submissions received by 13 July 2007 under sections 37 and 37A of the RMA.

4.0 Conclusion

This report has considered whether the council should allow the late submissions received to the Proposed Auckland City District Plan: Hauraki Gulf Islands Section 2006 as is provided for under sections 37 and 37A of the RMA. Taking into account the matters set out in section 37A(1) the report recommends that the council failure to comply with the time limit for all late prime submissions and late further submissions except for prime submissions 3860, 3861 and 3862. Prime submissions 3860, 3861 and 3862 were received too late to be included in the summary of submissions or notified for further submission and the panel cannot be satisfied that there has been adequate opportunity for the community to formally express its views on the issues raised. These recommendations are not the decisions of the hearing panel. At the beginning of the hearing process, the panel will consider and make decisions on whether late submissions should be accepted.

	Name and title of signatories	Signature
Author	Katherine Dorofaeff, Senior planner
Reviewer	Megan Tyler, Manager: Islands
Approver	Penny Pirrit, Manager: City Planning

1. Director, owner and trustee of Lara Limited and Andrew Family Trust

2. DK Simcock, TP Crick, JM Yeoman, MEK Brockie, JC Morton, SJ Tee, JAA Goddard: 3, 5 and 7 Orapiu Road.